This page includes the Terms of Use and the Privacy Policy*
WEBCLOUD TERMS OF USE
THESE TERMS AND CONDITIONS (THE “TERMS”) ARE A LEGAL CONTRACT
BETWEEN YOU AND THE WEBCLOUD. THESE TERMS EXPLAIN HOW YOU ARE PERMITTED TO USE
THE WEBSITE AS WELL AS ALL ASSOCIATED SITES PROVIDED BY WEBCLOUD, ITS
SUBSIDIARIES, AND AFFILIATED COMPANIES (COLLECTIVELY, THE “SITE”). BY USING
THIS SITE OR REGISTERING TO USE THE SERVICES OFFERED THROUGH THE SITE
(“SERVICES”), YOU ARE AGREEING TO ALL THE TERMS; IF YOU DO NOT AGREE WITH ANY
OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THIS SITE, ANY SERVICES OR ANY
INFORMATION CONTAINED ON THIS SITE.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION
PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE
TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH WEBCLOUD. YOU MAY OPT OUT
OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
Changes
WebCloud may make changes to the content and Services offered on
or through the Site at any time. WebCloud can change, update, or add or remove
provisions of these Terms, at any time by posting the updated Terms on this
Site and, if you are a current Subscriber (as defined below), emailing you at
the email address associated with your registered account. By using this Site
after WebCloud has updated the Terms, you are agreeing to all the updated
Terms; if you do not agree with any of the updated Terms, you must stop using
the Site and Services.
General Use
By using this Site and/or Services, you represent, acknowledge
and agree that you are at least 18 years of age, or if you are under 18 years
you may not use the Site or Services at any time or in any manner or submit any
information to WebCloud or the Site.
WebCloud provides content on the Site and through the Services
that is the copyrighted and/or trademarked work of WebCloud, WebCloud's
third-party licensors and suppliers or other users of the Site (collectively,
the “Materials”). Materials may include logos, graphics, video, images,
software and other content.
Subject to your compliance with these Terms, WebCloud hereby
grants you a limited, personal, non-exclusive and non-transferable license to
use and to display the Materials and to use this Site and Services solely for
your personal use. Except for the foregoing license, you have no other rights
in the Site or any Materials and you may not modify, edit, copy, reproduce,
create derivative works of, reverse engineer, alter, enhance or in any way
exploit any of the Site, Services or Materials in any manner.
If you breach any of these Terms, the above license will
terminate automatically and you must immediately destroy any downloaded or
printed Materials.
Using the Site and the Services on the Site
You need not register with WebCloud to simply visit and view the
Site. However, in order to access certain password-restricted areas of the Site
and to use the Services and certain Materials offered on and through the Site,
you must register with WebCloud for an account and receive a password.
Restricted Areas of this Site
WebCloud administrator shall have the right to approve or reject
the requested registration, in the Company’s sole discretion. If your account
is approved by WebCloud's administrator, you will be notified and provided with
Access Details such as username and password. The Access Details are for your
own personal use only. You are responsible for maintaining the confidentiality
of your Access Details and you are responsible for all activities that occur
using your Access Details.
All the information that you provide when registering for an
account and otherwise through the Site must be accurate, complete and up to
date.
Subscriptions
By registering for an account with WebCloud and subscribing to
use the Services, you become a “Subscriber” with access to certain
password-restricted Services, Materials and areas of the Site (a
“Subscription”). Subscriptions and the rights and privileges provided to a
Subscriber are personal and non-transferable.
Discontinued Services
Certain Services sold by WebCloud may require WebCloud to host
certain elements of such Services and to provide ongoing support services.
WebCloud reserves the right, in its sole discretion, to discontinue hosting,
support and all other activities related to such Services at any time following
12 months from your initial purchase of such Services. Prior to such
discontinuance, WebCloud will provide you with at least 30 days prior notice.
Such notice will be sent to the email address associated with your account, so
it is your responsibility to update as necessary the email address associated
with your account. Notwithstanding the foregoing, WebCloud shall only be
required to provide such notice to users that have logged into the accounts
associated with the Service to be discontinued within the period of 90 days
prior to the date of notice of discontinuation. Upon discontinuation of a
Service, WebCloud may delete all databases associated with your use of the
Service.
Refunds
ALL PURCHASES OF SUBSCRIPTIONS, SERVICES AND OTHER PRODUCTS FROM
WebCloud ARE FINAL AND NO REFUNDS ARE AVAILABLE, UNLESS OTHERWISE EXPRESSLY
PROVIDED FOR ON OUR WEBSITE OR IF WebCloud CANCELS YOUR ORDER.
While WebCloud attempts to create the highest quality Services,
the actual benefits realized by customers may vary depending upon a number of
variables, including customer efforts and initiative. You agree not to initiate
any charge-back on fees you have paid to WebCloud, unless you did not actually
receive the Services that your ordered.
Cancellations
If you cancel your account or Service at any time, you will not
receive any refund. However, even if WebCloud's policy for a certain service
allows for a refund, if WebCloud's determines that your purchase was initiated
with the intent of benefiting from the purchase and then requesting a refund
(which might be indicated by multiple refund requests), then WebCloud may
refuse to grant you a refund under such circumstances.
Electronic and Other Communications
By using the Site and/or the Services, you consent to receiving
electronic and telephone communications from or on behalf of WebCloud. These
electronic communications may include notices about applicable fees and
charges, transactional information and other information concerning or related
to the Site and/or Services (including offers and information about new
Services). These electronic communications are part of your relationship with
WebCloud. You agree that any notices, agreements, disclosures or other
communications that we send you electronically will satisfy any legal
communication requirements, including that such communications be in writing.
Third Party Content
Certain Materials may be provided by third party licensors and
suppliers to WebCloud (“Third Party Content”). Such Third Party Content is, in
each case, the copyrighted work of the creator/licensor. Unless you have
permission from the owner of the Third Party Content, you agree to use such
Third Party Content pursuant to the applicable licenses of such Third Party
Content. You acknowledge and agree that you have no right to download, cache,
reproduce, modify, display (except as set forth in this paragraph), edit, alter
or enhance any of the Third Party Content in any manner unless you have
permission from the owner of the Third Party Content. WebCloud DISCLAIMS ALL
EXPRESS, IMPLIED AND STATUTORY WARRANTIES AND CONDITIONS WITH REGARD TO THIRD
PARTY CONTENT, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD
PARTY RIGHTS.
Links to Third Party Sites
This Site and/or the Services may be linked to other web sites
that are not WebCloud sites (collectively, “Third Party Sites”). In certain
situations, you may be transferred to a Third Party Site through a link but it
may appear that you are still on the Site or using the Services. In any case,
you acknowledge and agree that the Third Party Sites may have different privacy
policies, terms and conditions and/or user guides and business practices than
WebCloud, and you further acknowledge and agree that your use of such Third
Party Sites is governed by the applicable Third Party Web Site privacy policy,
terms and conditions and/or user guides. You hereby agree to comply with any
and all terms and conditions, users guides and privacy policies of any of Third
Party Sites. WebCloud is providing links to the Third Party Sites to you as a
convenience, and WebCloud does not verify, make any representations or take
responsibility for such Third Party Sites, including, without limitation, the
truthfulness, accuracy, quality or completeness of the content, services, links
displayed and/or any other activities conducted on or through such Third Party
Sites. Unless expressly stated on the Site or in the Services, links to Third
Party Sites should in no way be considered as or interpreted to be WebCloud’s
endorsement of such Third Party Site or any product or service offered through
it. YOU AGREE THAT WebCloud WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE
OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION,
RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD PARTY WEB SITES
AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO,
OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION
WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD
PARTY.
Unauthorized Activities
When using this Site and/or the Services, you agree to abide by
common standards of etiquette and act in accordance with the law. For example,
you agree not to not to:
Defame, abuse, harass, stalk, threaten, or otherwise violate the
legal rights (such as rights of privacy and publicity) of others.
Use racially, ethnically, or otherwise offensive language.
Discuss or incite illegal activity.
Use explicit/obscene language or solicit/post sexually explicit
images (actual or simulated).
Post anything that exploits children or minors or that depicts
cruelty to animals.
Post any copyrighted or trademarked materials without the
express permission from the owner.
Disseminate any unsolicited or unauthorized advertising,
promotional materials, ‘junk mail’, ‘spam’, ‘chain letters’, ‘pyramid schemes’,
or any other form of such solicitation.
Use any robot, spider, scraper or other automated means to
access the Site.
Take any action that imposes an unreasonable or
disproportionately large load on our infrastructure.
Alter the opinions or comments posted by others on this Site.
Post anything contrary to our public image, goodwill or
reputation.
This list of prohibitions provides examples and is not complete
or exclusive. WebCloud reserves the right to terminate access to your account,
your ability to post to this Site (or use the Services) with or without cause
and with or without notice, for any reason or no reason, or for any action that
WebCloud determines is inappropriate or disruptive to the Site or Services, or
to any other user of the Site and/or Services. WebCloud may report to law
enforcement authorities any actions that may be illegal, and any reports it
receives of such conduct. When legally required or at WebCloud's discretion, WebCloud
will cooperate with law enforcement agencies in any investigation of alleged
illegal activity on the Site, the Services, or on the Internet.
You agree to indemnify and hold WebCloud and its officers,
directors, employees, affiliates, agents, licensors, and business partners
harmless from and against any and all costs, damages, liabilities, and expenses
(including attorneys’ fees and costs of defense) WebCloud or any other
indemnified party suffers in relation to, arising from, or for the purpose of
avoiding, any claim or demand from a third-party that your use of this Site or
Services violates any applicable law or regulation, or the copyrights,
trademark rights or other rights of any third-party.
Proprietary Rights
WebCloud and third-party trademarks and service marks may or may
not be designated as such from time-to-time through the SM, TM or ® symbols.
All rights not expressly granted herein are reserved. Except as otherwise
required or limited by applicable law, any reproduction, distribution,
modification, re-transmission, or publication of any copyrighted material is
strictly prohibited without the express written consent of the copyright owner
or license.
Intellectual Property Infringement
WebCloud respects the intellectual property rights of others,
and we ask you to do the same. WebCloud may, in appropriate circumstances and
at our discretion, terminate service and/or access to this Site for users who
infringe the intellectual property rights of others. If you believe that your
work is the subject of copyright infringement and/or trademark infringement and
appears on our Site or in the Services, please provide WebCloud’s designated
agent the following information:
A physical or electronic signature of a person authorized to act
on behalf of the owner of an exclusive right that is allegedly infringed.
Identification of the copyrighted and/or trademarked work
claimed to have been infringed, or, if multiple works at a single online site
are covered by a single notification, a representative list of such works at
that site.
Identification of the material that is claimed to be infringing
or to be the subject of infringing activity and that is to be removed or access
to which is to be disabled at the Site, and information reasonably sufficient
to permit WebCloud to locate the material.
Information reasonably sufficient to permit WebCloud to contact
you as the complaining party, such as an address, telephone number, and, if
available, an electronic mail address at which you may be contacted.
A statement that you have a good faith belief that use of the
material in the manner complained of is not authorized by the copyright and/or
trademark owner, its agent, or the law.
A statement that the information in the notification is
accurate, and under penalty of perjury, that you are authorized to act on
behalf of the owner of an exclusive right that is allegedly infringed.
WebCloud’s agent for notice of claims of copyright or trademark
infringement can be reached as follows: [Your Email]
Please also note that for copyright infringements under Section
512(f) of the Copyright Act, any person who knowingly materially misrepresents
that material or activity is infringing may be subject to liability.
Submitting a Digital Millennium
Copyright Act (“DMCA”) Counter-Notification
We will notify you that we have removed or disabled access to
copyright-protected material that you provided, if such removal is pursuant to
a valid DMCA take-down notice that we have received. If you receive such notice
from us, you may provide us with a counter-notification in writing to WebCloud
designated agent that includes all of the following information:
1. Your physical or electronic signature;
2. Identification of the material that has been removed or to
which access has been disabled, and the location at which the material appeared
before it was removed or access to it was disabled;
3. A statement from you under the penalty of perjury, that you
have a good faith belief that the material was removed or disabled as a result
of a mistake or misidentification of the material to be removed or disabled; and
4. Your name, physical address and telephone number, and a
statement that you consent to the jurisdiction of a court for the judicial
district in which your physical address is located, or if your physical address
is outside of the United States, for any judicial district in which WebCloud
may be located, and that you will accept service of process from the person who
provided notification of allegedly infringing material or an agent of such
person.
Termination of Repeat Infringers
WebCloud reserves the right, in its sole discretion, to
terminate the account or access of any user of our Site and/or Services who is
the subject or repeated DMCA or other infringement notifications.
Disclaimer of Warranties
Your use of the Site and Services is at your own risk. The
Materials have not been verified or authenticated in whole or in part by WebCloud,
and they may include inaccuracies or typographical or other errors. WebCloud
does not warrant the accuracy of timeliness of the Materials contained on this
Site or obtained through the Services. WebCloud has no liability for any errors
or omissions in the Materials, whether provided by WebCloud, our licensors or
suppliers or other users.
WebCloud, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS,
IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION
WITH THIS SITE, THE SERVICES, OR ANY MATERIALS, RELATING TO THE QUALITY,
SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL
CONTAINED OR PRESENTED. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, THIS SITE, THE SERVICES, AND MATERIALS AND
ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE OR THROUGH THE
SERVICES IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS
WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. WebCloud DOES
NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE
INSTALLED ON YOUR COMPUTER.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND
INTERACTIONS WITH OTHER USERS OF THE SITE AND SERVICES AND WITH OTHER PERSONS
WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE
AND/OR ANY SERVICE. YOU UNDERSTAND THAT WebCloud DOES NOT MAKE ANY ATTEMPT TO
VERIFY THE STATEMENTS OF USERS OF THE SITE OR SERVICES. WebCloud MAKES NO
REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE OR
SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF SITE OR
SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND
INTERACTIONS WITH OTHER USERS OF THE SITE OR SERVICES AND WITH OTHER PERSONS OR
ENTITIES WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE
SITE OR ANY SERVICE, PARTICULARLY IF YOU DECIDE TO MEET OR CONDUCT BUSINESS
OFFLINE OR IN PERSON.
Limitation of Liability
WebCloud SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING
FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THIS
SITE OR THE SERVICES. IN NO EVENT SHALL WebCloud BE LIABLE TO YOU FOR ANY
INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER
ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF WebCloud KNOWS THERE IS A
POSSIBILITY OF SUCH DAMAGE.
Local Laws. WebCloud accept Subscribers internationally. You are
responsible to adhere to your applicable local laws where you live.
Feedback
If you send or transmit any communications, comments, questions,
suggestions, or related materials to WebCloud , whether by letter, email,
telephone, or otherwise (collectively, “Feedback”), suggesting or recommending
changes to the Site, any Services or Materials, including, without limitation,
new features or functionality relating thereto, all such Feedback is, and will
be treated as, non-confidential and non-proprietary. You hereby assign all
right, title, and interest in, and WebCloud is free to use, without any
attribution or compensation to you, any ideas, know-how, concepts, techniques,
or other intellectual property and proprietary rights contained in the
Feedback, whether or not patentable, for any purpose whatsoever, including but
not limited to, developing, manufacturing, having manufactured, licensing,
marketing, and selling, directly or indirectly, products and services using
such Feedback. You understand and agree that WebCloud is not obligated to use,
display, reproduce, or distribute any such ideas, know-how, concepts, or
techniques contained in the Feedback, and you have no right to compel such use,
display, reproduction, or distribution.
Dispute Resolution and Arbitration; Class Action Waiver
Please read this carefully. It affects your rights.
Most customer concerns can be resolved quickly and to a
customer’s satisfaction by contacting us via Your Email. This Provision
facilitates the prompt and efficient resolution of any disputes that may arise
between you and WebCloud. Arbitration is a form of private dispute resolution
in which persons with a dispute waive their rights to file a lawsuit, to
proceed in court and to a jury trial, and instead submit their disputes to a
neutral third person (or arbitrator) for a binding decision. You have the right
to opt-out of this Provision (as explained below), which means you would retain
your right to litigate your disputes in a court, either before a judge or jury.
Please read this Provision carefully. It provides that all
Disputes between you and WebCloud shall be resolved by binding arbitration.
Arbitration replaces the right to go to court. In the absence of this
arbitration agreement, you may otherwise have a right or opportunity to bring
claims in a court, before a judge or jury, and/or to participate in or be
represented in a case filed in court by others (including, but not limited to,
class actions). Except as otherwise provided, entering into this agreement
constitutes a waiver of your right to litigate claims and all opportunity to be
heard by a judge or jury. There is no judge or jury in arbitration, and court
review of an arbitration award is limited. The arbitrator must follow this
agreement and can award the same damages and relief as a court (including
attorney’s fees).
For the purpose of this Provision, “THE COMPANY” means WebCloud
and its parents, subsidiaries, and affiliate companies, and each of their
respective officers, directors, employees, and agents. The term “Dispute” means
any dispute, claim, or controversy between you and THE COMPANY regarding any
aspect of your relationship with THE COMPANY, whether based in contract,
statute, regulation, ordinance, tort (including, but not limited to, fraud,
misrepresentation, fraudulent inducement, or negligence), or any other legal or
equitable theory, and includes the validity, enforceability or scope of this
Provision (with the exception of the enforceability of the Class Action Waiver
clause below). “Dispute” is to be given the broadest possible meaning that will
be enforced, and shall include any claims against other parties relating to
services or products provided or billed to you (such as THE COMPANY’s
licensors, suppliers, dealers or third-party vendors) whenever you also assert
claims against us in the same proceeding.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL
DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR
OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND
FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS
PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you
must first give THE COMPANY an opportunity to resolve the Dispute. You must
commence this process by mailing written notification to Your Email. That
written notification must include (1) your name, (2) your address, (3) a
written description of your Claim, and (4) a description of the specific relief
you seek. If THE COMPANY does not resolve the Dispute within 45 days after it
receives your written notification, you may pursue your Dispute in arbitration.
You may pursue your Dispute in a court only under the circumstances described
below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or THE COMPANY may choose to
pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies,
it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE
ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO
THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by
sending a written notification to Your Email. Your written notification must
include (1) your name, (2) your address, and (3) a clear statement that you do
not wish to resolve disputes with THE COMPANY through arbitration. Your
decision to opt-out of this Arbitration Provision will have no adverse effect
on your relationship with THE COMPANY. Any opt-out request received after the
Opt-Out Deadline will not be valid and you must pursue your Dispute in
arbitration or small claims court.
Arbitration Procedures
If this Provision applies and the Dispute is not resolved as
provided above (Pre-Arbitration Claim Resolution) either you or THE COMPANY may
initiate arbitration proceedings. The American Arbitration Association (“AAA”),
www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the
arbitration will be conducted before a single arbitrator. The arbitration shall
be commenced as an individual arbitration, and shall in no event be commenced
as a class arbitration. All issues shall be for the arbitrator to decide,
including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000,
the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply;
for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules
will apply. In either instance, the AAA’s Optional Rules For Emergency Measures
Of Protection shall apply. The AAA rules are available at www.adr.orgor by calling
1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration
Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols
For Domestic, Commercial Cases will apply. The JAMS rules are available atwww.jamsadr.comor by calling
1-800-352-5267. This Provision governs in the event it conflicts with the
applicable arbitration rules. Under no circumstances will class action
procedures or rules apply to the arbitration.
Because the Site, Services and these Terms concern interstate
commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all
Disputes. However, the arbitrator will apply applicable substantive law
consistent with the FAA and the applicable statute of limitations or condition
precedent to suit.
Arbitration Award – The arbitrator may award on an individual
basis any relief that would be available pursuant to applicable law, and will
not have the power to award relief to, against or for the benefit of any person
who is not a party to the proceeding. The arbitrator will make any award in
writing but need not provide a statement of reasons unless requested by a
party. Such award will be final and binding on the parties, except for any
right of appeal provided by the FAA, and may be entered in any court having
jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or THE COMPANY may initiate
arbitration in either the State of Alabama or the federal judicial district
that includes your billing address. In the event that you select the federal
judicial district that includes your billing address, THE COMPANY may transfer
the arbitration to Alabama in the event that it agrees to pay any additional
fees or costs you incur as a result of the transfer, as determined by the
arbitrator.
Payment of Arbitration Fees and Costs – THE COMPANY will pay all
arbitration filing fees and arbitrator’s costs and expenses upon your written
request given prior to the commencement of the arbitration. You are responsible
for all additional fees and costs that you incur in the arbitration, including,
but not limited to, attorneys or expert witnesses. Fees and costs may be
awarded as provided pursuant to applicable law. In addition to any rights to
recover fees and costs under applicable law, if you provide notice and
negotiate in good faith with THE COMPANY as provided in the section above
titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you
are the prevailing party in the arbitration, you will be entitled to recover
reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator
may not consolidate more than one person’s claims, and may not otherwise
preside over any form of a class or representative proceeding or claims (such
as a class action, consolidated action or private attorney general action)
unless both you and THE COMPANY specifically agree to do so following
initiation of the arbitration. If you choose to pursue your Dispute in court by
opting out of the Arbitration Provision, as specified above, this Class Action
Waiver will not apply to you. Neither you, nor any other user of the Site or
Services can be a class representative, class member, or otherwise participate
in a class, consolidated, or representative proceeding without having complied
with the opt-out requirements above.
Jury Waiver
You understand and agree that by entering into this Agreement
you and THE COMPANY are each waiving the right to a jury trial or a trial
before a judge in a public court. In the absence of this Provision, you and THE
COMPANY might otherwise have had a right or opportunity to bring Disputes in a
court, before a judge or jury, and/or to participate or be represented in a
case filed in court by others (including class actions). Except as otherwise
provided below, those rights are waived. Other rights that you would have if
you went to court, such as the right to appeal and to certain types of
discovery, may be more limited or may also be waived.
Severability
If any clause within this Provision (other than the Class Action
Waiver clause above) is found to be illegal or unenforceable, that clause will
be severed from this Provision, and the remainder of this Provision will be
given full force and effect. If the Class Action Waiver clause is found to be
illegal or unenforceable, this entire Provision will be unenforceable and the
Dispute will be decided by a court.
Continuation
This Provision shall survive the termination of your service
with WebCloud or its affiliates. Notwithstanding any provision in this
Agreement to the contrary, we agree that if WebCloud makes any change to this
Provision (other than a change to the Notice Address), you may reject any such
change and require WebCloud to adhere to the language in this Provision if a
dispute between us arises.
General
WebCloud prefers to advise you if we feel you are not complying
with these Terms and to recommend any necessary corrective action. However,
certain violations of these Terms, as determined by WebCloud, may result in
immediate termination of your access to the Site and/or Services without prior
notice to you. The Federal Arbitration Act, Alabama state law and applicable
U.S. federal law, without regard to the choice or conflicts of law provisions,
will govern these Terms. Foreign laws do not apply. The United Nations on
Contracts for the International Sale of Goods and any laws based on the Uniform
Computer Information Transactions Act (UCITA) shall not apply to this
Agreement. Except for Disputes subject to arbitration as described above, any
disputes relating to these Terms or this Site will be heard in the courts
located in the city and State of Alabama. If any of these Terms is found to be
inconsistent with applicable law, then such term shall be interpreted to
reflect the intentions of the parties, and no other terms will be modified. WebCloud’s
failure to enforce any of these Terms is not a waiver of such term. These Terms
are the entire agreement between you and WebCloud and supersede all prior or
contemporaneous negotiations, discussions or agreements between you and WebCloud
about the Site and Services. The proprietary rights, disclaimer of warranties,
representations made by you, indemnities, limitations of liability and general
provisions shall survive any termination of these Terms.
Contact Us
If you have any questions about these Terms or otherwise need to
contact WebCloud for any reason, please contact via Your Email
WebCloud Privacy Policy
IN THIS PRIVACY POLICY (THE “Policy”) IS A LEGAL CONTRACT
BETWEEN YOU AND Your Agency Name. (“WebCloud”, “WE” OR “US”). THE Policy
EXPLAINS HOW YOU ARE PERMITTED TO USE THE WEBSITE AS WELL AS ALL ASSOCIATED
SITES PROVIDED BY WebCloud, ITS SUBSIDIARIES, AND AFFILIATED COMPANIES
(COLLECTIVELY, THE “SITE”). BY USING THIS SITE OR REGISTERING TO USE THE
SERVICES OFFERED THROUGH THE SITE (“SERVICES”), YOU ARE AGREEING TO ALL THE
TERMS; IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE
USE THIS SITE, ANY SERVICES OR ANY INFORMATION CONTAINED ON THIS SITE.
WebCloud (“WebCloud”, “WE” OR “US”) value your privacy. In this
Privacy Policy (“Policy”), we describe how we collect, use and disclose
information that we obtain about visitors to our website AS WELL AS ALL
ASSOCIATED SITES PROVIDED BY WebCloud, ITS SUBSIDIARIES, AND AFFILIATED
COMPANIES (COLLECTIVELY, THE “SITE”).
By visiting the Site, or using any of our services, you agree
that your personal information will be handled as described in this Policy.
Your use of our Site or Services, and any dispute over privacy, is subject to
this Policy and our Terms Use, available HERE, including its applicable
limitations on damages and the resolution of disputes. WebCloud’s Terms of Use
are incorporated by reference into this Policy.
The Information We Collect we may collect information about you directly from you and from
third parties (such as those that sell our products), as well as automatically
through your use of our Site or Services.
Information We Collect Directly From You
Certain areas and features of our Site and Services may require
registration. To register you must provide your name and email. If you purchase
something, we will also request your credit, debit, and/or financial account
data, as well as billing information, including billing address. In addition,
we may collect information from you through surveys, contests and
questionnaires that we may invite you to participate in. We may also collect
information such as your phone number or other contact information, though you
are not required to provide this.
Information We Collect Automatically
We may automatically collect the following information about
your use of our Site or Services through cookies and other technologies: your
domain name; your browser type and operating system; web pages you view; links
you click; your IP address; the length of time you visit our Site and or use
our Services; and the referring URL, or the webpage that led you to our Site.
We may combine this information with other personal information that we have
collected from you. Please see the section Our Use of Cookies and Other
Tracking Mechanisms below for more information about our use of cookies and
other tracking mechanisms.
How We Use the Information We Collect
We use the information that we gather about you for the
following purposes:
To provide our Services to you, to communicate with you about
your use of our Services, to respond to your inquiries, to fulfill your orders,
and for other customer service purposes.
To tailor the content and information that we may send or
display to you, to offer location customization, and personalized help and
instructions, and to otherwise personalize your experiences while using the
Site or our Services.
To send you news and newsletters, special offers, and
promotions; to otherwise contact you about products or information we think may
interest you; and for other marketing and promotional purposes.
To better understand how users access and use our Site and
Services, both on an aggregated and individualized basis, in order to improve
our Site and Services and respond to user desires and preferences, and for
other research and analytical purposes.
How We Share the Information We Collect
We may share the information that we collect about you,
including personally identifiable information, as follows:
Affiliates. We may disclose the information we collect from you
to our affiliated companies or subsidiaries; however, if we do so, their use
and disclosure of your personally identifiable information will be subject to
this Policy.
Service Providers. We may disclose the information we collect
from you to third-party vendors, service providers, contractors or agents who
perform functions on our behalf. If we do so, their use and disclosure of your
personally identifiable information will be subject to this Policy.
Business Transfers. If we are acquired by or merged with another
company, if substantially all of our assets are transferred to another company,
or as part of a bankruptcy proceeding, we may transfer the information we have
collected from you to the other company.
In Response to Legal Process. We also may disclose the
information we collect from you in order to comply with the law, a judicial
proceeding, court order, or other legal process, such as in response to a court
order or a subpoena.
To Protect Us and Others. We also may disclose the information
we collect from you where we believe it is necessary to investigate, prevent or
take action regarding illegal activities, suspected fraud, situations involving
potential threats to the safety of any person, violations of our Terms of Use
or this Policy, or as evidence in litigation in which WebCloud is involved.
Aggregate and De-Identified Information. We may share aggregate
or de-identified information about users with third parties for marketing,
research or similar purposes.
Our Use of Cookies and Other Tracking Mechanisms
We use cookies and other tracking mechanisms to track
information about your use of our Site or Services. We may combine this
information with other personal information we collect from you.
Cookies. Cookies are alphanumeric identifiers that we transfer
to your computer’s hard drive through your web browser for record-keeping
purposes. We use cookies to allow our systems to uniquely identify you during a
session or while you are logged into the Site, in order to help us to process
your online transactions and requests, verify your identity, track aggregate
and statistical information about user activity, and display advertising both
on our Site and App and on third-party sites. Most web browsers automatically
accept cookies, but if you prefer, you can edit your browser options to block
them in the future. The Help portion of the toolbar on most browsers will tell
you how to prevent your computer from accepting new cookies, how to have the
browser notify you when you receive a new cookie, or how to disable cookies
altogether. Visitors to our Site who disable cookies will be able to browse
certain areas of the Site, but some features may not function.
Clear GIFs. Clear GIFs (a.k.a. web beacons, web bugs or pixel
tags) are tiny graphics with a unique identifier, similar in function to
cookies. In contrast to cookies, which are stored on your computer’s hard
drive, clear GIFs are embedded invisibly on web pages. We may use clear GIFs,
in connection with our Site to, among other things, track the activities of
Site visitors and App users, help us manage content, and compile statistics
about usage. We and our third party service providers also use clear GIFs in
HTML e-mails to our customers, to help us track e-mail response rates, identify
when our e-mails are viewed, and track whether our e-mails are forwarded.
Third Party Analytics and Tracking. We use automated devices and
applications, such as Google Analytics, to evaluate usage of our Site and, to
the extent permitted, our Application. We also may use other analytic means to
evaluate our Services. We use these tools to help us improve our Services,
performance and user experiences, not to track users across our Site and third
party sites. These entities may use cookies and other tracking technologies to
perform their services. We do not share your personal information with these
third parties.
Notice for Users. These cookies collect information about how
visitors use a website, for instance which pages visitors go to most often, and
if they get error messages from web pages. These cookies don’t collect
information that identifies a visitor. All information these cookies collect is
aggregated and therefore anonymous. It is only used to improve how a website
works. By using our online service, you agree that we can place these types of
cookies on your device.
Third-Party Ad Networks
We may use third parties, such as network advertisers, to
display advertisements on our Site, as well as to display ads on third-party
websites. This enables us and these third parties to target advertisements by
displaying ads for products and services in which you might be interested.
Third-party ad networks and related services may use cookies, JavaScript, web
beacons (including clear GIFs), Flash LSOs, and other technologies to measure
the effectiveness of their ads and to personalize advertising content to you.
These third-party cookies and other technologies are governed by each third
party’s specific privacy policy, not this one. We may provide these third-party
advertisers with information about your usage of our Site and our Services. We
do not share your name, email address or other personal information with these
third parties, and we do not permit these third parties to use cookies and
other tracking technologies placed on our Site to automatically collect your
personal information.
What about Do-Not-Track options?
Currently, our Site does not honor browser requests not to be
tracked. You may, however, opt out of many website third-party ad networks,
including those operated by members of the Network Advertising Initiative
(“NAI”) and the Digital Advertising Alliance (“DAA”). For more information
regarding this practice by NAI members and DAA members, and your choices
regarding having this information used by these companies, including how to opt
out of third-party ad networks operated by NAI and DAA members, please visit
their respective websites: www.networkadvertising.org/optout_nonppii.asp (NAI) and www.aboutads.info/choices (DAA).
Opting out of one or more NAI member or DAA member networks
(many of which will be the same) only means that those members no longer will
deliver targeted content or ads to you. It does not mean you will no longer
receive any targeted content or ads on our Site or other websites. You may
continue to receive advertisements, for example, based on the particular
website that you are viewing. Also, if your browsers are configured to reject
cookies when you visit this opt-out page, or you subsequently erase your
cookies, use a different computer or change web browsers, your opt-out may no
longer be effective. Additional information is available on the NAI and DAA
websites accessible by the above links.
Your Choices about Communications and Marketing
We may send alerts and notifications, as well as periodic
promotional informational or other marketing emails to you. You may opt out of
marketing-related emails by following the opt-out instructions contained in any
marketing e-mail we send you. Please note that it may take up to 10 business
days for us to process opt-out requests. If you opt out of receiving marketing
emails, we may still send you alerts, notifications and other e-mails about
your account or any services you have requested or received from us.
International Transfers
WebCloud has affiliates internationally. Your information may be
stored and processed in the United States or any other country where WebCloud
and/or it’s affiliates are located; by submitting your information though our
website, you agree to such transfers.
Security
We have implemented commercially reasonable precautions to
protect the information we collect from loss, misuse, and unauthorized access,
disclosure, alteration, and destruction. Please be aware that despite our best
efforts, no data security measures can guarantee 100% security. You should take
steps to protect against unauthorized access to your password, phone, and
computer by, among other things, signing off after using a shared computer,
choosing a robust password that nobody else knows or can easily guess, and
keeping your log-in and password private. We are not responsible for any lost,
stolen, or compromised passwords or for any activity on your account via
unauthorized password activity.
Changes to this Policy
This Policy is effective as of the Effective Date above and is
subject to change. Any changes to this Policy will be posted on our Privacy
Policy page on this website.
Website accessibility solution User License Agreement
THIS END USER LICENSE AGREEMENT ("AGREEMENT") IS A
LEGAL AGREEMENT BETWEEN YOU, EITHER AS AN INDIVIDUAL, COMPANY OR OTHER LEGAL
ENTITY ("You") and WebCloud]. AND ITS AFFILIATES AND ITS TECHNOLOGY
PARTNERS (THE "COMPANY"PLEASE READ THIS AGREEMENT CAREFULLY BEFORE
INSTALLING AND/OR USING COMPANY’S SOFTWARE. ANY USE OF COMPANY’S SOFTWARE
INCLUDING ANY REVISIONS, MODIFICATIONS, ENHANCEMENTS, UPDATES AND/OR UPGRADES
THERETO ("SOFTWARE", AS FURTHER DEFINED BELOW) SUPPLIED BY COMPANY
AND/OR ITS AUTHORIZED RESELLERS, ARE AND SHALL BE SUBJECT TO THE TERMS AND
CONDITIONS SET FORTH IN THIS AGREEMENT, UNLESS YOU AND COMPANY HAVE EXECUTED A
SEPARATE AGREEMENT IN WRITING, SIGNED BY BOTH YOU AND COMPANY WHICH EXPRESSLY
SUPERSEDES THIS AGREEMENT. COMPANY AND YOU SHALL EACH BE REFERRED TO AS A
"PARTY" AND, JOINTLY, AS THE "PARTIES".
BY DOWNLOADING AND/OR INSTALLING AND/OR OPERATING AND/OR
OTHERWISE USING THE SOFTWARE, YOU ARE EXPRESSLY AND EXPLICITLY ACCEPTING THIS
AGREEMENT AND AGREEING TO BE FULLY BOUND BY ALL OF ITS TERMS AND CONDITIONS. IF
YOU DO NOT AGREE TO THIS AGREEMENT OR ARE NOT WILLING TO BE BOUND BY IT, DO NOT
DOWNLOAD, INSTALL, OPERATE AND/OR OTHERWISE USE THE SOFTWARE AND YOU MUST
PROMPTLY UNINSTALL THE SOFTWARE, AND ANY PART THEREOF, FROM YOUR SYSTEM.
The Company offers a variety of plans under its services. For
the purpose of this Agreement, the plans shall be divided into 2 types: (i)
free plans (collectively- the "Free Plan"); and (ii) premium plans,
including the enterprise plan (the "Premium Plans" and the
"Enterprise Plan", respectively); Each plan has its own features and
qualifications, all as further detailed in this Agreement.
1.LICENSE GRANT AND RESTRICTIONS
1.1 The Software. The commercial software products licensed to
you hereunder are set forth in one of the following means: (a) in accordance
with this Agreement; (b) if you purchased the Enterprise Plan, or any optional
feature under any of the Premium Plans, in accordance with a purchase order
executed between you and Company; or (c) if you purchased the Enterprise Plan,
or any optional feature under any of the Premium Plans, in accordance with a
purchase order executed between Company's authorized reseller (the
"Reseller") and you (both purchase orders are collectively referred
herein as the "Purchase Order"). Such software products, including
any revisions, modifications, enhancements, updates and/or upgrades thereto
(the "Software") are provided to you solely for the regular and
standard purposes the Software is designed for, all in accordance with the
terms set forth in this Agreement and the Purchase Order. The term
"Software" also includes code, compilation of data, or visual display
resulting from the operation of the Software, and any associated materials,
equipment, systems, specifications and Documentation (as defined below).
1.2 License. Subject to the terms and conditions of this
Agreement and the payment of fees set forth in this this Agreement or the
Purchase Order, as the case may be ("Fees"), the Company hereby
grants you (and your Affiliates, if applicable), and you accept, the following
license
1.2.1. Subscription License: during the term specified in this
Agreement, the Price List, or in the Purchase Order, a limited, non-exclusive,
non-sublicensable, non-transferable and fully revocable license to install,
operate and use the Software solely for your internal business purposes and for
the number of facilities and/or domains that were set forth in your order form
and/or in the relevant Purchase Order ("Subscription License").
1.2.2. The Software will be installed and used in accordance
with the terms and conditions contained in this Agreement and in accordance
with the Software's documentation and manuals for installation provided by the
Company or its Reseller (the "Documentation"). All other rights in
the Software are expressly reserved by the Company.
1.3. Prohibited Uses. Except as explicitly provided herein,
without the prior written consent of the Company, you may not, nor permit
anyone else to, directly or indirectly: (i) use, modify, revise, enhance,
incorporate into or with other software, or create a derivative work of any
part of the Software; (ii) sell, resell, license (or sub-license), lease,
assign, transfer, pledge, or share your rights under this Agreement with or to
anyone else; (iii) copy, distribute, publish or reproduce the Software; (iv)
use or permit the Software to be use to perform services for third parties,
whether on a service bureau or time sharing basis or otherwise; (v) disclose,
publish or otherwise make publicly available the results of any benchmarking of
the Software, or use such results for your own competing software development
activities; (vi) disassemble, decompile, reverse engineer, or attempt to
reconstruct or discover any source code or underlying ideas or algorithms of
the Software, except to the extent otherwise permitted under applicable law in
the jurisdiction of use, notwithstanding this prohibition; (vii) remove or
otherwise alter any of the Company's trademarks, logos, copyrights or other
proprietary notices or indicia, if any, fixed or attached to the Software as
delivered to you; (viii) ship, transfer or export the Software into any
country, make available or use the Software in any manner which is in violation
of applicable export control laws, restrictions or regulations; (ix) disclose,
provide or otherwise make available trade secrets contained within the Software
in any form to any third party; and/or (x) use the Software in violation of
applicable laws, or in a manner which infringes third party rights (including
without limitation, intellectual property or privacy rights).
1.4. Authorized Users. You may not allow access to the Software
by third parties or anyone other than (i) your employees whose duties require
such access or use; and (ii) your authorized consultants and subcontractors
(excluding any direct competitors of the Company) while such access will be
permitted only where such use is required as part of their performance of
services on your behalf. You will ensure that your employees, consultants and
subcontractors comply with the terms of this Agreement and shall bear full
responsibility for any harm caused to the Company for breach of the terms of
the license by your consultants or subcontractors.
2.COMPLIANCE WITH ACCESSIBILITY STANDARDS; SOFTWARE FEATURES
If you acquired the Enterprise Plan, which contains full
implementation services from the Company, or purchased such full implementation
services in addition to a license to use the accessibility solution under one
of the Plans, then following the completion of such services by the Company,
the following will apply:
2.1 Your website shall comply with the following accessibility
standards: (i) WCAG 2.1 AA, (ii) European standard EN 301549; (iii) US Section
508 standards; and (iiii) Israeli standard IL 5568 at level AA (the
"Standard").
2.2 The following features, inter alia, shall apply to the
Software (the "Features"):
2.2.1. Compatibility with the following browsers: Edge, Safari,
Chrome, Firefox.
2.2.2. Compatibility with use on websites constructed in HTML5,
and without code errors when checking the browser console; you must ensure that
no code takes control of the keyboard, and that no JS clashes are created on
the website.
2.2.3. The Software only supports HTML tags and files.
2.2.4. CAPTCHA forms on your website must conform with the
Standard and is under your responsibility.
2.2.5. The Software does not support SVG Flash or Canvas
component.
2.2.6. The Software does not support third party component
services such as Frame set, iframe virtual service representative, etc.
2.2.7. Only iframe components operating under the same domain as
the website can be made accessible.
2.2.8. The Software does not support drag components.
2.2.9. The Company is not responsible for any HTML code that is
not conforming to the Standard or not written in conformity with the W3C
standard.
2.3 Notwithstanding the foregoing, the Company gives no
guarantee that the Software shall at all times comply with the Standard. The
Company shall take commercially reasonable efforts to meet the Standard
requirements but under no circumstances does the Company give any warranty that
all Standard requirements shall be met. Company shall have up to 60 business
days to rectify any regulatory non-compliance issue from the day on which You
provide Company with written notice regarding such non-compliance issue (the
"Cure Period"). Without prejudice to other limitation of liability
clauses in this Agreement, the Company shall not be liable for non-compliance
issues which are resolved within the Cure Period, or which relate to matters
which are in your of responsibility as set forth in Sec. 3.2 below. You are
required to promptly notify the Company in writing of any non-compliance issues
that You are made aware of.
For the avoidance of doubt, if you acquired the Free Plan and/or
the Premium Plan and have not purchased such full implementation services in
addition to a license to use the accessibility solution under one of the Plans,
the Company does not commit that your website shall comply with the
aforementioned Standards and Features.
3. SERVICES RELATED TO THE SOFTWARE
3.1 Unless indicated explicitly in a Purchase Order, this
Agreement and/or its appendixes, the Company has no obligation to provide the
following services: Software support and maintenance, Software delivery and
installation, Software training or other professional services. The Purchase
Order will indicate which services are provided by the Company or its Resellers.
3.2 If you acquired the Enterprise Plan and/or purchased
services (such as implementation services) in addition to a license to use the
accessibility solution under one of the Plans, then such services shall be
provided to your designated website by the Company or by the relevant Reseller,
as the case may be, subject to the following:
3.2.1. The website should be made to meet accessibility
requirements in accordance with the website’s existing templates, and in
accordance with relevant accessibility regulations. You will be notified of the
completion of the process of making the website accessible by the appearance of
a mark on the administration interface, pertaining to the website’s
pages/templates made accessible.
3.2.2. Publishing an accessibility declaration and your
organization’s accessibility arrangements is your sole responsibility, in
accordance with relevant accessibility requirements.
3.2.3. Upon completion of the accessibility implementation work,
you may obtain additional accessibility services works from Company or
Reseller, as the case may be, for an extra charge for any addition of and/or
update to templates and/or use of new technologies and/or change to the code
and/or tags and/or selectors on which the website’s system is based (the
"Changes to the Website"). You shall be solely responsible for the
accessibility of any Changes to the Website, unless you acquired implementation
services pertaining to such Changes to the Website.
3.2.4. You shall be, at all times, solely responsible for all
the materials and content displayed on the website, including in matters
concerning copyrights in and the accessibility of the content, documents and
media displayed on the website and listed in Appendix B ( "the
Contents"). You hereby expressly acknowledges that Company or Reseller (if
applicable) shall not be responsible for checking the Contents and/or their
compliance with the law and/or for checking any accessibility certificates
required for your website.
3.2.5. You may engage the services of an accessibility
consultant or licensed service accessibility expert. Any accessibility reports
by external consultants shall be handled for an additional charge.
4. CONSIDERATION
4.1 The Fees and payment terms for the license granted under
each Plan and/or any related services are specified in the Purchase Order.
5. TITLE AND OWNERSHIP
5.1 The Software and the Documentation are licensed and not
sold. The Company and its licensors (if applicable) are and shall retain all
right, interest and ownership in and to the Software and the Documentation,
including without limitation in and to any and all intellectual property rights
(including, without limitation, copyrights, trade secrets, trademarks,
improvements, revisions, derivative works and etc.) evidenced by or embodied in
and/or attached/connected/related to the Software. This Agreement does not
convey to you an interest in or to the Software but only a limited revocable
right to use the Software, during the applicable license term, in accordance
with the terms of this Agreement. Nothing in this Agreement constitutes a
waiver of the Company's intellectual property rights under any law. If you
contact the Company or its Reseller with feedback data (e.g., questions,
comments, suggestions or the like) regarding the Software (collectively,
"Feedback"), such Feedback shall be deemed non-confidential, and the
Company shall have a non-exclusive, worldwide royalty-free and perpetual
license to use or incorporate such Feedback into the Software and/or other
current or future products or services of the Company (without your approval
and without further compensation).
5.2 Without derogating from the generality of the foregoing, the
Software and all its parts and contents, including applications developed by
Company or at Company's request, are the Company's sole property, even if any
changes and adjustments are made for you, with or without consideration, and
all the copyrights are reserved to Company. It is clarified that the license to
operate and use the software for your website does not confer upon you any
right in the software’s source code and/or grant it any access to the software
application or grant it any access to the open or closed software code.
6. REPRESENTATIONS AND WARRANTIES, EXCLUSIONS AND DISCLAIMERS
6.1 Company's Representations. If you acquired the Enterprise
Plan, the Company hereby represents to you as follows: (i) it has the full
right, power and authority to grant the rights and licenses granted herein;
(ii) it implements industry standard measures to ascertain that the Software
does not contain any viruses, harmful components, illicit code, time-bombs,
worms, Trojan horses, protect codes, data destruct keys, or other programming
devices or code that might, or might be used to, access, modify, delete,
damage, deactivate or disable any deliverables or other software, computer
hardware, or data; (iii) all implementation and maintenance services will be
performed in a professional and workmanlike manner and in compliance with all
applicable laws and (iv) the Company shall take commercially reasonable efforts
to meet the requirements and specifications stated in the Documentation. For
the avoidance of any doubt, if you acquired the Free Plan and/or the Premium
Plan, such representations shall not and will not apply to you in any manner.
6.2 Specific Exclusions. Without derogating from any general
and/or specific exclusions of warranty set forth in this Agreement, no warranty
and no liability shall be borne by Company in the following: (i) repair,
maintenance or modification of the Software by persons other than authorized
entities; (ii) accident, negligence, abnormal physical or electrical stress,
abnormal environmental conditions, abuse or misuse of the Software (in each
case, unless caused by Company or its agents or representatives); (iii) use of
the Software other than in accordance with the Software's manuals,
specifications, Documentation and/or purpose; (iv) the combination of the
Software with equipment and/or software not authorized or provided by the
Company or otherwise approved by the Company in the Software's Documentation;
(v) the Software being licensed for beta evaluation, testing or demonstration
purposes; (vi) if you do not follow the general guidelines set forth in
Appendix B (which, for clarity purposes, are solely your responsibility and do
not constitute any legal and/or other counsel).
6.3 DISCLAIMERS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
SOFTWARE IS PROVIDED ON AN "AS IS" BASIS AND THE COMPANY DISCLAIMS
ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO,
MERCHANTABILITY, NON-INTERFERENCE, FITNESS FOR A PARTICULAR PURPOSE AND ANY
WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
7. LIMITATION OF LIABILITY
7.1 EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND WITHOUT PREJUDICE TO THE
LIMITATION OF LIABILITY AS SET FORTH IN SECTION 2.3 ABOVE: (A) THE COMPANY OR
ITS SUPPLIERS AND/OR LICENSORS AND/OR RESELLERS SHALL NOT BE LIABLE WHETHER
UNDER CONTRACT, TORT OR OTHERWISE, TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT,
INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND
(INCLUDING BUT NOT LIMITED TO, ANY LOSS OR DAMAGE TO BUSINESS EARNINGS, LOST
PROFITS OR GOODWILL AND LOST OR DAMAGED DATA OR DOCUMENTATION), SUFFERED BY ANY
PERSON, ARISING FROM AND/OR RELATED WITH AND/OR CONNECTED TO THE INSTALLATION
OF THE SOFTWARE OR ANY EQUIPMENT OR SYSTEM SUPPLIED BY THE COMPANY OR ITS
RESELLERS AND/OR ANY USE OF OR INABILITY TO USE THE SOFTWARE OR ANY EQUIPMENT
OR SYSTEM SUPPLIED BY THE COMPANY OR ITS RESELLERS, EVEN IF THE COMPANY WAS
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN NO EVENT SHALL THE
COMPANY'S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT FROM ALL
CLAIMS OR CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE
AGGREGATED AMOUNT OF (10) US DOLLARS (UNLESS YOU HAVE PURCHASED THE ENTERPRISE
PLAN OR ANOTHER PREMIUM PLAN WITH WARRANTY, IN SUCH CASE THE LIABILITY CAP
SHALL BE AS SET FORTH IN THE COMPANY'S PRICE LIST HERE) . (THE "LIABILITY
CAP"). FOR CLARITY THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER
INCIDENT.
8. THIRD PARTY SOFTWARE
The Software is based on software which is developed and owned
by the Company and/or its licensors. The Software may use or include third
party software, files and components that are subject to open source and third
party license terms ("Third Party Components"). Your right to use
such Third Party Components as part of, or in connection with the Software is
subject to any applicable acknowledgements and license terms accompanying such
Third Party Components contained therein or related thereto. If there is a
conflict between the licensing terms of such Third Party Components and this
Agreement, the licensing terms of the Third Party Components shall prevail in
connection with the related Third Party Components. Such Third Party Components
are provided on an "AS IS" basis without any warranty of any kind and
shall be subject to any and all limitations and conditions required by such
third parties. You hereby agree to such terms associated with the Third Party
Components. Under no circumstances shall the Software or any portion thereof
(except for the Third Party Components contained therein) be deemed "open
source" or "publicly available" software.
9. CUSTOMER DATA
You hereby acknowledge that the Software may collect, use, store
and transmit to Company technical and related information of your systems and
computers including IP address, file hashes, browser type, operating system,
application usage (including but not limited to successful installation and/or
removal), software usage and peripheral hardware, that may be gathered
periodically to facilitate the provision of the Software, Software updates,
Software's support and other services provided to you, including online
services.
10. INDEMNIFICATION
10.1 You agree, in accordance with final non-appealable court
judgement, to defend, indemnify and hold harmless the Company, its officers,
directors, employees and agents, from and against any and all claims, damages,
obligations, losses, liabilities, costs, debts, and expenses (including but not
limited to reasonable attorney's fees) arising from your unauthorized use of
the Software and/or breach of the provisions of this Agreement and/or any
Purchase Order. Company shall promptly notify you of any such claim, complaint
or lawsuit. You shall have the right, in your sole discretion, to defend any
claim, complaint, or lawsuit and to settle any claim, complaint, or lawsuit at
your own expense and by your own counsel. Any settlement agreement must be
reasonably approved in advance by the Company. The Company is obligated to
cooperate fully in the investigation and defense of any such claim, complaint
or lawsuit. In addition, this indemnification does not apply to any loss,
damage, cost or expense to the extent such Losses are caused by the gross
negligence or willful misconduct or the Company or any of the Company’s
employees, subcontractors, agents, representatives or assigns.
10.2 Only if you acquired the Enterprise Plan or other Premium
Plan with warranty services, then the Company, in accordance with final
non-appealable court judgement, agrees to defend, indemnify and hold harmless
You, your officers, directors, employees and agents, from and against any and
all claims, damages, obligations, losses, liabilities, costs, debts, and
expenses (including but not limited to reasonable attorney's fees) arising out
of or incurred in connection with any third party claim, action, suit or
proceeding (including, without limitation, any governmental or similar
authority investigation, inquiry or action), to the extent it is based on a
claim that the Software or Documentation or any of the services provided here
under infringes any patent, trademark, copyright or trade secret of a third
party, provided, however, that such claim is found to be true by a competent
court in a final, non-appealable court ruling.
10.3 Only if you acquired the Enterprise Plan or other Premium
Plan with warranty services, then the Company, in accordance with final
non-appealable court judgement, further agrees to defend, indemnify and hold
harmless You, your officers, directors, employees and agents, from and against
any and all claims, damages, obligations, losses, liabilities, costs, debts,
and expenses (including but not limited to reasonable attorney's fees) arising
out of or incurred in connection with any third party claim, action, suit or
proceeding (including, without limitation, any governmental or similar
authority investigation, inquiry or action), to the extent it is based on
breach of Sec. 2.1 and 2.2 above, which is not cured within the Cure Period set
forth in Sec. 2.3 above, and to the extent that such doesn't derive from or
relate to matters which are in Your responsibility as set forth in Sec. 3.2
above.
10.4 You agree that: (i) you shall, as soon as reasonably
practicable, notify the Company in writing of any claim for which it intends to
seek indemnification hereunder promptly after becoming aware of such claim;
(ii) you shall not make any admission as to liability or compromise or agree to
any settlement of any such claim without the prior written consent of the
Company which consent shall not be unreasonably withheld or delayed; and (iii)
the Company shall, at its own expense, be entitled to have the conduct of or
settle all negotiations and litigation arising from any such claim and you
shall, at Company's request and expense, give the Company all reasonable
assistance in connection with those negotiations and such litigation.
10.5 The indemnification obligations set forth above shall be at
all times limited to the Liability Cap.
10.6 For the avoidance of any doubt, please note that if you
acquired the Free Plan and/or a Premium Plan with no warranty, the Company
shall have no obligation to indemnify you pursuant to Sections 10.2 and 10.3.
11. TERM AND TERMINATION
11.1 Agreement Term. This Agreement is effective upon the first
download, installation, operation and/or use of the Software and will remain in
force during the Term (as defined below), unless earlier terminated in
accordance with this Agreement. Subscription Licenses are period-based licenses
that may be renewed for subsequent periods. The order form and/or the Purchase
Order will indicate the term of your applicable license, as well as the
parties' rights to terminate the license and services (the "Term").
11.2 If you have subscribed to the Free Plan, the Company may at
any time, block your access to the Software and/or temporarily or permanently
limit, suspend or terminate your user's account, for any reason, at the
Company's sole discretion.
11.3 In addition, under any Plan, the Parties may terminate this
Agreement or a specific Purchase Order on the following grounds: (i)
termination by mutual written consent; (ii) by either Party upon written notice
to the other Party if the other Party commits a material breach of this
Agreement and fails to cure or remedy such breach within thirty (30) days after
receiving written notice of such breach; or (iii) either Party may terminate
this Agreement upon written notice to the other Party in the event that one or
more of the following events occur(s): (a) appointment of a trustee or receiver
for all or any part of the assets of the other Party; (b) insolvency or
bankruptcy of the other Party; (c) a general assignment by the other Party for
the benefit of creditor(s); or (d) dissolution or liquidation of the other
Party. notwithstanding the foregoing, any Fees paid to Company are
non-refundable under any circumstances. This means that if you purchased a
License for an extended period of time, such as for a year or for a three-year
period, none of the Fees paid by you are refundable.
11.4 Effect of Termination. Upon termination of this Agreement
or a Purchase Order: (i) all Subscription Licenses granted to you and all valid
Purchase Orders (in the event of termination of the Agreement) or those granted
under a specific Purchase Order (in the event of its specific termination), as
the case may be, shall expire, and you shall no longer be permitted to use the
Software; and (ii) any sums and/or Fees paid by you before the date of
termination are non-refundable, and you shall not be relieved of your duty to
discharge in full all due sums owed to the Company under this Agreement, which
sums shall become immediately due and payable on the date of termination of
this Agreement or relevant Purchase Order.
11.5 Survival. Any right, obligation or required performance of
the Parties in this Agreement which, by its express terms or nature and context
is intended to survive termination or expiration of this Agreement, will
survive any such termination or expiration.
12. CONFIDENTIALITY
Each Party may have access to certain non-public and/or
proprietary information of the other Party, in any form or media, including
(without limitation) confidential trade secrets and other information related
to the products, software, technology, data, know-how, or business of the other
Party, whether written or oral, and any other information that a reasonable
person or entity should have reason to believe is proprietary, confidential, or
competitively sensitive (the "Confidential Information"). Each Party
shall take reasonable measures, at least as protective as those taken to
protect its own confidential information, but in no event less than reasonable
care, to protect the other Party's Confidential Information from disclosure to
a third party. Neither Party shall use or disclose the Confidential Information
of the other Party except as expressly permitted under this Agreement or by
applicable law. All right, title and interest in and to Confidential
Information are and shall remain the sole and exclusive property of the
disclosing Party. Neither Party shall have an obligation under this Agreement
to maintain in confidence any information that (i) is in the public domain at
the time of disclosure, (ii) though originally Confidential Information, subsequently
enters the public domain other than by breach of such Party’s obligations
hereunder or by breach of another person’s or entity’s confidentiality
obligations, (iii) is shown by documentary evidence to have been known by such
Party prior to disclosure to such Party by the discloser; or (iv) is
independently developed by such Party without reference to Confidential
Information.
13. REFERENCE CUSTOMER
You agree that the Company may identify you as a user of the
Software and use your trademark and/or logo: (i) in sales presentations,
promotional/marketing materials, and press releases, and (ii) in order to
develop a brief customer profile for use by the Company on its website and
other promotional channels for promotional purposes.
14. RIGHT TO CHANGE THESE TERMS AND CONDITIONS
The company reserves its right to change any or all of the
provisions of this Agreement unilaterally. The company shall inform you of any
such change in advance. You are hereby required to periodically review these
terms and conditions. Notwithstanding the foregoing, you are not permitted to
unilaterally change any or all of the provisions of this Agreement.
15. MISCELLANEOUS
This Agreement shall be construed and governed in accordance
with the laws of the State of Israel (with no regard to conflict of law
provisions) and the competent courts of Tel Aviv-Jaffa, Israel shall have
exclusive jurisdiction in any conflict or dispute arising out of this
Agreement. The application of the United Nations Convention of Contracts for
the International Sale of Goods is expressly excluded. This Agreement
represents the complete agreement concerning the license granted herein and the
subject matter hereof supersedes any prior written or oral agreements. The
failure of either Party to enforce any rights granted hereunder or to take
action against the other Party in the event of any breach hereunder shall not
be deemed a waiver by that Party as to subsequent enforcement of rights or
subsequent actions in the event of future breaches. If any provision of this
Agreement is held to be unenforceable, such provision shall be reformed only to
the maximum extent necessary to make it enforceable. This Agreement shall be
binding upon the respective heirs, beneficiaries, legal or personal
representatives, successors and permitted assigns of the Parties. You may not
assign your rights or obligations under this Agreement without the prior
written consent of the Company, and any attempt by you to so assign, shall be
deemed null and void. The Company may assign its rights and or obligations
under this Agreement, without your prior written consent. Notwithstanding the
foregoing, you may transfer or assign any of your rights and/or obligations
under this Agreement without obtaining the consent of the Company, in
connection with any merger (by operation of law or otherwise), consolidation,
reorganization, change in control or sale of all or substantially all of your
assets or similar transaction of such assigning Party. Neither Party shall be
liable for any failure to perform or delay in performance of any of its
obligations under this Agreement caused by circumstances beyond the reasonable
control of a Party to this Agreement including without limitation act of God,
government or local government, war, fire, flood, earthquake or storm, acts of
terrorism, explosion, civil commotion, bank strike or industrial dispute.
APPENDIX A
MAINTENANCE SERVICES
Only if you acquired the Enterprise Plan or purchased
maintenance services in addition to a license to use the accessibility solution
under one of the Plans, the Company shall provide the following maintenance
services during the term of your valid license (collectively, the
"Maintenance Services"):
Maintenance and support services during business hours 09:00-17:
00 (GMT+2).
Maintenance services include telephone assistance, accessibility
issues, and malfunctions reporting. Response is given by telephone and/or
email. For this purpose, "malfunction" – material nonconformity of
the Software with the description thereof contained in its accompanying
documentation. Company shall make commercially reasonable efforts to operate
the Software and/or system services properly and without any technical
malfunctions or disruptions. However, interruptions and malfunctions in the
operation of the Software and/or the system may sometimes exist, which are
beyond the control of the Company and/or caused by improper use of the Software
by you. You shall have no claim, demand or suit against the Company with
respect to any such malfunction or interruption, including for any damage
caused, directly or indirectly, by such interruptions or malfunctions. In
addition, updates to the software or updated versions thereof, including
enhancements and additions, shall be provided from time to time by the Company,
at its discretion. The service shall be provided during Company regular working
hours, excluding holidays.
Software upgrades for the duration of the license.
Maintenance services include version updates in accordance with
changes in accessibility standards.
Provision of a professional opinion by an accessibility expert
on our behalf in cases of exemption.
Response times for service call: Up to 7 working days. Response
times for a severe service call: 24 hours.
Monitoring system to check accessibility of the site for
discrepancies and gaps.
Ongoing operation of the website (after module implementation is
complete) is solely your responsibility. In the case of adding new
components/templates to the website, it is possible to get future accessibility
services. Such services may be subject to additional fees.
Please note that if you acquired the Free Plan and/or the
Premium Plan (other than the Enterprise Plan), and have not purchased
maintenance services in addition to a license to use the accessibility solution
under one of the Plans, the Company has or shall have no obligation to provide
you with such Maintenance Services.
APPENDIX B
GENERAL GUIDELINES FOR CUSTOMER TO MEET REGULATORY OBLIGATIONS
Please note: the following table is provided for your
convenience only, and under any circumstances does not constitute any legal
advice and/or otherwise.
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